Sticky situations in the White House? Better call Preston

One of Monica Lewinsky's former lawyers will be the first outside advisor to America's secret court that oversees NSA spying.

Preston Burton was chosen as the first of five advocates who will provide expert advice to the Foreign Intelligence Surveillance Court (FISC) when discussing whether to approve spying programs.

His first job will be to advise the FISC on whether the US government should be allowed to retain data past November 28, when the telephone storage program run by the NSA under Section 215 of the Patriot Act is officially shut down.

Burton has a lively roster of ex-clients, ranging from Monica Lewinsky to Washington DC madam Jeane Palfrey to a number of high-profile double-agents including Aldrich Ames (CIA), Robert Hanssen (FBI), and Ana Belén Montes (US Defense Department). As a result, he has the top security clearance that is a prerequisite for the court.

In an interesting twist, it was Ames' trial for providing American intelligence on Soviet agents to the USSR that led to the FISC being given the right to approve FBI searches of citizens' homes without the traditional search warrant.

Under the filing [PDF] that announced Burton's engagement, the FISC notes that the NSA has asked to be allowed to keep the billions of metadata records it has, but only use them "for certain technical and litigation-related purposes." The super-snoop agency also wants its staff to be allowed to continue to search those records until March 2016 for specific cases that are brought before the court.

The FISC notes it has taken these requests "under advisement," and it looks as though Burton will be asked to provide advice on it.

The inclusion of the first outside advocate is a big change for the court. Previously, its judges were only able to hear from government representatives: something that privacy advocates feel was responsible for the court approving the vast majority of the requests put to it.

Burton's role and powers will be limited, however. He will be asked for his advice only if a case presents "a novel or significant interpretation of the law," rather than always being on hand to question the appropriateness of spying requests. The FISC is also not obliged to use any of its outside advocates even if the case is unusual; it can simply decide it doesn't need advice. And the court can withhold information from its outside advocates if it feels it is not "relevant." ®